Vaughan v Walker

• Jurisdiction: Ireland
• Judgment Date: 30 November 1858
• Date: 30 November 1858
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

VAUGHAN

and

WALKER.

Norton v. TurvilleENR 2 P. Wms. 144.

Coppin v. GrayENR 1 Y. & C., C. C., 205.

Bolden v. Nicholay 3 Jur., N. S., 884.

Aylett v. Ashton 1 M. & Cr. 112.

Vaughan v. VanderstegenENR 2 Drew. 165, 179, 183.

Hovenden v. Annesley 2 Sch. & Lef. 632, 633.

Fergus v. Gore 1 Sch. & Lef. 110.

Dillon v. CruiseUNK 3 Ir. Eq. Rep. 83, 84.

Burke v. Jones 2 Ves. & B. 275.

Dunne v. DoranUNK 13 Ir. Eq. Rep. 546.

Scott v. JonesENR 4 Cl. & Fin. 395.

Cholmondeley v. ClintonENR 2 Jac. & W. 140, 149.

Hulme v. TenantENR 1 Bro. C. C. 16.

Owens v. DickensonENR 1 Cr. & Ph. 53.

Murray v. Barlee 3 M. & K. 223.

Hovenden v. Annesley 2 Sch. & Lef. 607.

458 CHANCERY REPORTS. 1857. Ch. Appeal. Court of Opprai in Cbattrerg. Nov. 30. VAUGHAN v. WALKER. 1858. . Feb. 23. Tuffs was an appeal from the decree made in this matter in the Court of Chancery, on the 16th of June 1857. The case in the Court below is reported in 7 Ir. Ch. Rep., p. 471, where the facts are fully stated. It may be here mentioned that Mrs. Walker, a married woman, being entitled to the separate use of certain proÂÂperty, retained Mr. Vaughan to do certain business as a solicitor for her ; and that, more than six years after the business was completed, a petition was filed to have the costs paid out of Mrs. Walker's separate estate. Mr. Fitzgerald, Mr. Lloyd and Mr. William Smith, for the petitioner. This is admittedly a question of some difficulty ; but in the Court below it was decided that, from the peculiar nature of the right of the creditor against the separate estate of a married woman, he is in some measure a cestui que trust of the property, and therefore not subject to the ordinary bar of the Statute of Limitations. That doctrine is founded on Norton v. Turville (a). In the argument below, it was suggested that in that case there must have been some express trust for the payment of the debts ; but that would have no application, for a trust or charge for payment of debts out of the personal estate of a testator has no operation : and on the case it would appear two things were decided ; first, that the bond was void, qua bond ; and secondly, that it was not a personal demand against the married woman, but against the trust estate, which made the creditor quodammodo a cestui que trust.' Coppin v. Gray (b) is the only case where it is noticed; and the Vice-Chancellor there 0) 2 P. W1W. 10. (b) 1 Y. & C., 0. 204. CHANCERY REPORTS. 459 gaurds himself against being supposed to have overruled it. It is only by analogy to the Statutes of Limitation at Law that Courts of Equity apply the six years' limitation. It is true that the demand at Law, if the petitioner had legal rights against Mrs. Walker, would be a personal demand Coming within that statute. But the demand here is not a personal demand at all, and there is therefore no analogy between the case at Law and the case here. It is alleged that the doctrine respecting the rights of creditors of married women has changed of late years ; that the early doctrine treated the creditor as an appointee, but that the modern cases had treated his right as springing out of the debtor's right of property. Even if that change be established, it does not affect the principle upon which Norton v. Turville was decided. Bolden v. Nicholay (a) shows that when a married woman enters into a contract which would bind her personally, if a feme sole, she marks an intention to charge her separate estate. Mr. Napier and Mr. Benjamin Stephens, for the respondent Mrs. Walker. The Lord Chancellor in his judgment refers to the case of Norton v. Turville (b), as an authority upon this very question ; but it is to be remembered that in that case the Statute of Limitations does not appear to have been pleaded by the executors, and the debt was a bond debt, sued for within twenty years. Assuming, however, that that case is actually a decision on the question, it is so plainly at variance with the modern authorities, that it must be considered as overruled. The reason given for the decision is :-" All the separate estate of the feme covert was a trust estate for payment of debts ; and a trust is not within the Statute of Limitations." Neither of these propositions is absolutely correct. As to the first, it is to be remarked that, as to the separate real estate of a married woman, this Court only attaches the rents and profits for payment of her debts, so that the whole estate cannot be considered a trust fund : Aylett v. Ashton (c). Vice-Chancellor (a) 3 Jur., N. S., 884. (b) 2 P. Wins. 144. (c) 1 M. & Cr. 112. 460 • CHANCERY REPORTS. 1857. Kindersley, in his judgment in the case of Vaughan v. Van- Ch. Appeal. derstegen (a), traces and explains the change and progress of the VAUGHAN doctrine of this Court as to the relation of a feme covert to her V. WALKER. separate property. Originally all capacity to contract a debt was Argument. denied ; but first bonds, &c., then bills of exchange and notes, and then engagements in writing, were satisfied out of her estates ; someÂÂtimes as constructive executions of a power, and sometimes as, charges created out of her interest. But now, he says, the settled doctrine of the Court is, to...